## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1315

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Randy Lee Vanhorn, * [UNPUBLISHED] * Appellant. *

___________ Submitted: June 15, 1998 Filed: June 25, 1998

___________ Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.

___________ PER CURIAM. Randy Lee Vanhorn previously leased and managed a bowling center . Using the
names and social security numbers of children who participated in a youth bowlin g league, Vanhorn prepared false Internal Revenue Service (IRS) W-2 forms and ta x returns, which he mailed to the IRS, listing his home address as the ret urn address. The IRS m ailed three refund checks totaling over $12,000 to Vanhorn, who forge d endorsements o n two of the checks, attempted to deposit one of them, and succeeded in d epositing the other. The fraud was eventually discovered, and Vanhorn late r pleaded guilty to three counts of filing a false tax claim, in violation of 18 U.S.C. § 287,-2-

and two co unts of forging an endorsement on a United States Treasury check, i n viola tion of 18 U.S.C. § 510(a)(2). The district court sentenced Vanhorn to serve 27
mon ths’ imprisonment and three years’ supervised release, and to pay restitution and a fine. Vanhorn later filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing, inter al ia, that the district court violated his rights by neglecting to inform him of hi s rightto appeal his sentence. The district court set aside Vanhorn’s sentence on tha t basis, o rdered resentencing, and ultimately resentenced Vanhorn to serve 24 months’ imprison ment

and three years’ supervised release, and again to pay restitution and a fine. Vanhorn now appeals from the new sentence.
Vanhorn first argues that the district court erred in enhancing his sentence fo r abusing a position of trust. The Guidelines require a two-level increase toa defendant & s base offense level “[i]f the defendant abused a position of public or private trust . . . in a manner that

significantly facilitated the commission or concealment of the offense.” SeeU.S. Sente ncing Guidelines Manual § 3B1.3 (1997). We review for clear error a sentenci ng court’s factual findings, but we review de novo the application of th e Guidelines to the facts. See United States v. Darden , 70 F.3d 1507, 1544 (8th Cir

. 1995), cert. denied , 517 U.S. 1149, and cert. denied , 518 U.S. 1026 (1996). Based on uncontested information in the presentence report (PSR), as well as on testimony given during the sentencin g and resentencing hearings, we conclude that the district court did not clearly err in finding that Vanhorn obtained the children’s social security numbers f

rom forms they filled out to join the National Bowling Association, notwithstanding Vanhorn’s testimony to the contrary. See United States v. Dierling , 131 F.3d 722, 736 (8th Cir. 1997) (sentencing court’s asses sment of witness credibility “nearly unreviewable”), cert. denied , 118 S. Ct. 1379, and cert. denied , 11 8 S. Ct. 1401 (1998) , and pet & n for cert. filed , -- U.S.L.W. -- (U.S. May 7, 1998) (No. 97-9043)

. Because Vanhorn was manager of the facility to which t he children had entrusted these forms, the district court did not err in assessing the abuse-of-trust enhancement. See-3-

U.S. Sentencing Guidelines Manual § 3B1.3, comment. (n.1) (1 997) (position of public or private trust is characterized by professional or managerial discretion). Vanhorn also challenges the district court’s decision to enhance his sentence for obstruction of justice. See U.S. Sentencing Guidelines Manual § 3C1.1 (1997) (add two level s if defendant willfully obstructed or impeded, or attempted to obstruct o r imp ede, administration of justice during investigation, prosecution, or sentencing o f instant offense). The PSR and testimony at re sentencing demonstrate that, on June 13, 1996, Vanhorn admitted his participation in the instant offenses and informed an IRS special ag ent that he still had not received the third IRS refund check he had bee n expecting. Although the agent instructed Vanhorn to surrender the third c heck to police when it arrived, Vanhorn instead deposited the check after its arrival and then wrot e checks against the account in which it was deposited. As a result, the IRS was unable to recover the deposited funds. Althoug h Vanhorn argues that the record does not demonstrate any intent t o impe de justice, we conclude otherwise: depositing a fraudulently-obtained chec k against the explicit instructions of autho rities during the investigation of the underlying fraud, and then spending the deposited funds so as to effectivelythwart efforts to return the money to the victim, clearly warrants an obstruction-of-justice enhancement. See U.S. S entencing Guidelines Manual § 3C1.1, comment. (n.2) (1997) (obstructiv e cond uct varies widely in nature, degree of planning, and seriousness); Dierling , 13 1 F.3d at 738 (§ 3C1.1 enhancement is proper where m isconduct occurs with knowledge of investi gation). We also reject as meritless Vanhorn’s related argument tha t assessing the enhancement constituted double-counting.
Next, Vanho rn argues that the district court clearly erred in denying him a n acceptance-of-responsibility reduction. W e disagree. See U.S. Sentencing Guidelines Manu al § 3E1.1, comment. (n.4) (1997) (conduct resulting in § 3C1.1 enhancemen t ordinarily indicates defendant has not accepted responsibility for criminal conduct);-4-

UnitedStates v. Chatman , 119 F.3d 1335, 1342 (8th Cir.) (standard of review), cert. denied , 118 S. Ct. 434 (1997). Finally, we agree w ith Vanhorn that he was denied the right of allocution at his resentencing hearing. By vacating Vanhorn’s sentence and ordering resentencing, the district court effectively sentenced him anew, entitling Vanhorn to be heard befor e havi ng sentence imposed upon him. See Fed. R. Crim. P. 32(c)(3)(C) (befor e sentencing, court must address de fendant personally and determine whether he wishes to make statement and present mitigating information); United State s v. Taylor , 11 F.3d 149, 152 (11th Cir. 1994) (per curiam) (defendant entitled to allocution where district court vacated original sentence upon § 2255 motion , and scheduled resentencing). We also note that

the record shows that Vanhorn was never invited to speak in mitigation of his sentence and that he received a sentence at the top of the applicable Guidelines range. Given these circumstances, we are unable to c onclude that the error is harmless. See United States v. Patterson , 128 F.3d 1259, 1261 (8th Cir. 1997) (per curiam ) (rev iewing for harmless error deprivation of right of allocution). Accordingly, o n remand Vanhorn must be given an op portunity for allocution prior to the imposition of senten ce upon him. See United States v. Walker , 896 F.2d 295, 301 (8th Cir. 1990). We deny Vanhorn’s motion for a full review of the record.
The sen tence is vacated, and the case is remanded to the district court fo r proceedings consistent with this opinion. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.